Who owns the ccTLDs?

Lawfare blog covers an interesting case that attempts to answer the question Are Top-level Domains Property? 

On December 28 [2015], the Justice Department filed an amicus brief in Weinstein v. Islamic Republic of Iran, a case pending before the D.C. Circuit. At issue is whether country-code top-level domains are the property of those countries’ foreign governments.

Does a country’s government own the country-code top level domain that represents that country?

DOJ argues first that ccTLDs are not attachable “property” or “assets” under the FSIA or TRIA. Rather, ccTLDs “merely [] designat[e] . . . the national affiliation of a subset of the global Internet community,” including “millions of private businesses and individuals.

Although the right to designate its territory “Iran” is presumably valuable to the Iranian government, no one would suggest that the name “Iran” in an atlas or a newspaper—or even official publications—is itself the “property” of the Iranian government subject to attachment by creditors.  

The Justice Department focuses primarily on the practical mechanisms of Internet governance. To support its position, DOJ points to a 1994 Internet governance document describing the Internet naming authority as a responsibility, not a property right, as well as “the actual practice under which country-code top-level domains have been established and managed.” In practice, ICANN “delegat[es]” TLD management to regional managers on the basis of whether the manager will be a “technically competent trustee of the domain on behalf of the national and global Internet communities.” In this sense, TLDs differ from second-level domains, which private parties purchase from the TLD-managers. Importantly, DOJ does treat second-level domains as property.

Internet domain stewardship is complex. Per the court:

any court order treating TLDs as property would threaten “the multi-stakeholder model of Internet governance” because other countries would react by “turn[ing] their backs on ICANN for good.” This risk of root zone anarchy not only eliminates any potential value for plaintiffs—who had hoped to profit from licensing Iran’s ccTLD—but also would “be devastating for ICANN.”

ICANN > a national government, in this case.